//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2025] HCA 22
respondent. Appeal dismissed with costs.
6 cited instruments linked from this judgment.
The High Court held that Air Canada could have agreed to remove the Montreal Convention defence that may limit damages above a specified threshold. But the phrase in its tariff saying there were no financial limits for death or bodily injury only described the Convention's overall liability regime. In context, it did not waive the separate defence that applies above the threshold. The passengers' appeal was dismissed with costs.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,340 words · generated 03/10/2026
The High Court of Australia unanimously dismissed the appeal by Renae Evans and another passenger against Air Canada, with costs. The judgment was delivered on 14 May 2025 by Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ. Its subject was a narrow but important question about the relationship between the Montreal Convention and an airline's tariff: could the carrier waive a partial defence to passenger injury claims, and, if so, had Air Canada done so in the wording of its tariff?
The passengers travelled on an Air Canada flight from Vancouver to Sydney in July 2019. They alleged that turbulence caused spinal and psychological injuries. Their claims were made under Art 17(1) of the Convention, which provides that a carrier is liable for damage caused by a passenger's death or bodily injury if the accident occurred on board the aircraft or during embarking or disembarking [2], [26].
Air Canada relied on Art 21(2). That provision can protect a carrier from liability for damages above a specified threshold if the carrier proves either that the damage was not due to its negligence or other wrongful act or omission, or that it was solely due to the negligence or wrongful act or omission of a third party [2], [29]. The threshold applicable to the 2019 events was 113,100 Special Drawing Rights (SDR), as the Court recorded [2] n 4, [31].
The passengers argued that Air Canada had contracted out of that partial defence. They relied on r 105(C)(1)(a) of the Air Canada Tariff: “There are no financial limits in respect of death or bodily injury” [2], [46]. The primary judge accepted their argument. The New South Wales Court of Appeal reversed that conclusion, holding that the tariff had not waived the defence. The High Court dismissed the passengers' further appeal [4]-[5].
The case did not decide whether the turbulence caused the alleged injuries, whether Air Canada could prove the facts necessary for Art 21(2), or the amount of any damages. Those matters were not resolved by the reserved question decided in the appeal. Nor was the separate answer concerning Pt 2 of the Civil Liability Act 2002 (NSW) appealed [3].
The Court separated two questions that might otherwise be conflated. First, could a carrier waive or reduce the operation of the Art 21(2) defence by contract? Secondly, did the particular tariff language do that?
On the first question, the Court held that Art 25 empowered a carrier to stipulate to a higher liability limit than the Convention provides, or to no limit at all [32], [38]-[39]. The Art 21(2) threshold was a “limit of liability” for this purpose. Article 24, which provides for periodic review of certain limits, expressly refers to the limits in Arts 21, 22 and 23 [31], [38]. The Court therefore rejected Air Canada's argument that Art 25 did not extend to the Art 21(2) threshold [38]-[39].
The Court's interpretation depends on understanding the Convention as a two-tier system, rather than treating the threshold as a cap on all liability. Article 17 establishes liability for qualifying bodily injury. Article 21(1) prevents a carrier from excluding or limiting liability for damages up to the threshold. Article 21(2) supplies an additional defence only for damages exceeding it [29], [36]-[37]. In the Court's analysis, the threshold separates the two tiers for the purposes of the defence; it does not impose a general ceiling on the carrier's liability [37].
The Court considered the history of the Warsaw system and the Montreal Convention's drafting. That history showed that the Warsaw Convention had imposed a monetary limit on passenger injury liability, while later agreements and negotiations moved towards higher or unlimited liability in specified circumstances [11]-[25]. The Montreal Convention's travaux préparatoires repeatedly described the emerging arrangement as a two-tier system, with strict liability up to a threshold and possible unlimited liability beyond it, subject to defences [20]-[25]. The history thus supported reading the Art 21 threshold as the dividing point for the additional defence, not as an overall damages cap [35]-[37].
On the second question, the Court held that r 105(C)(1)(a) did not exercise the power recognised by Art 25. It read the clause with the rest of the tariff, rather than treating the words “no financial limits” in isolation [47]-[54]. In context, the clause accurately described the overall effect of Art 17: the Convention does not impose an overall financial limit on qualifying death or bodily injury liability [50]. It did not state that the Art 21(2) threshold was raised or abolished.
Several features of the tariff supported that construction. The tariff existed in part to satisfy Canadian regulatory requirements to state applicable liability limits and exclusions [40]-[42], [51]. Its surrounding provisions generally summarised the effect of the relevant legal regimes rather than creating new contractual rights [52]. Rule 105(B)(5) incorporated the Convention's liability rules and provided that they prevailed over inconsistent tariff provisions [45], [53]. And unlike other provisions that expressly waived defences under the Warsaw Convention, r 105(C)(1)(a) did not use language of waiver or of raising or abolishing the threshold [42], [53].
The Court also considered r 105(C)(4), which, subject to the tariff and applicable law, stated that the carrier was not liable for death or injury not caused by its negligence [46], [54]. Read consistently with Art 21(2), that clause supported the view that Air Canada had not intended to surrender the defence. The Court did not rely on a general presumption that valuable rights must be waived in especially clear language. It said such an assumption could not decide the issue where the Convention itself allows a carrier to raise or remove the relevant threshold [48]. The controlling task remained construction of the actual tariff in its context and for its purpose [49].
Before this decision, the relevant Convention text provided for liability under Art 17, a threshold-based partial defence under Art 21(2), and a power to stipulate to higher or no liability limits under Art 25 [26], [29], [32]. The appeal required the High Court to clarify how those provisions fit together, and what counts as a contractual stipulation under Art 25.
The Court's decision makes clear that a carrier's ability to contract for higher limits is not confined to the numerical amount of a damages cap. The Art 21(2) threshold is itself a relevant limit for Art 25. Raising it may therefore reduce, or effectively remove, the circumstances in which the no-negligence defence can operate [38]-[39]. This is distinct from deciding that any particular carrier has done so: that requires construing the contract or tariff.
For tariff construction, the decision rejects an isolated reading of a phrase that appears to promise “no financial limits”. The phrase must be read alongside the Convention provisions it describes, the rest of the tariff, and the purpose for which the tariff was prepared [49]-[54]. Here, the phrase declared the overall reach of Art 17, while the Convention's partial defence remained available above the relevant threshold if its conditions were established [50], [54].
The judgment also confirms the interpretative approach for the Convention itself. Treaty provisions are interpreted in accordance with the Vienna Convention, including the ordinary meaning of the terms in context and in light of object and purpose [6]-[8]. The Court treated the Convention's preparatory work and historical development as relevant to that inquiry, rather than restricting its analysis to the bare wording of individual articles [7]-[8], [18]-[25].
The decision was about the meaning of this Convention and this Air Canada tariff. It does not establish that every clause using similar words will have the same meaning. Different drafting, surrounding provisions, or a clearly expressed stipulation to raise or abolish the threshold may present a different question.
At [37], the Court said that Arts 17 and 21 establish “a continuous regime of unlimited liability” with a threshold used to separate two tiers for the Art 21(2) defence. In plain English, the threshold is not a general cap on the claim. It marks the point above which the carrier may rely on an additional defence, if it proves the necessary facts.
At [38], the Court said Art 25 allows a carrier to raise the threshold “including to the point of effectively excluding” the no-negligence defence. Put simply, a carrier can agree to a contractual arrangement that makes the defence unavailable in practice. Whether the carrier has done so depends on the terms of its contract or tariff.
At [49], the Court described the interpretative task: r 105(C)(1)(a) had to be read in context and in light of its purpose. The clause was not to be decided by assumptions about what an airline would commercially choose, or by treating the phrase as self-explanatory without reference to surrounding terms.
At [50], the Court said the tariff wording accurately stated the effect of Art 17, but did not address the threshold for the Art 21(2) defence. In plain English, “no financial limits in respect of bodily injury” referred to the absence of an overall limit on liability. It did not necessarily mean that the carrier had surrendered every defence available under the Convention.
At [53]-[54], the Court relied on the tariff's structure. The Convention rules were incorporated, the disputed clause did not use the language of waiver, and another clause recognised a defence for injury not caused by carrier negligence. Together, those features supported the conclusion that the tariff had not waived Art 21(2).
The decision is directly relevant where a passenger alleges death or bodily injury caused by an accident on board an aircraft, or during embarking or disembarking, and the claim is governed by the Montreal Convention [26], [29]. It is especially relevant where the carrier seeks to rely on Art 21(2) for damages above the applicable SDR threshold and the claimant argues that a contract, tariff or condition of carriage has displaced that defence.
The case is also relevant where a carrier's tariff says there are “no financial limits” for death or bodily injury. Evans shows that such wording must be examined in its setting. Relevant features include whether the tariff describes legal rules or creates additional contractual terms, whether it incorporates the Convention, whether another clause recognises defences, and whether the disputed provision expressly raises or removes the Art 21 threshold [49]-[54].
It may also matter where a party contends that a general statement about unlimited liability necessarily waives a particular defence. The judgment distinguishes the Convention's overall liability structure from the defence that applies to the second tier [36]-[39]. A lawyer analysing another tariff would need to compare its exact words and structure with those considered here.
The judgment does not determine whether any particular injury was caused by an “accident” within Art 17, whether a carrier can prove the Art 21(2) defence, or the amount of damages. Those questions depend on the relevant claim, evidence and governing provisions, and were not decided by the High Court in this appeal.
The judgment was delivered on 14 May 2025. The supplied judgment text contains no decisions from later courts applying or distinguishing Evans. Accordingly, it is not possible, from this source alone, to describe how later courts have treated it.
The decision itself discusses earlier authorities and materials as part of its reasoning. It refers to Povey v Qantas Airways Ltd for the principle that international treaties should be interpreted uniformly by contracting states [6]. It also cites decisions including Kingdom of Spain v Infrastructure Services Luxembourg Sàrl and Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG in connection with treaty interpretation [6]. Those authorities inform the interpretative method; the judgment does not suggest that they decided the particular Air Canada tariff question.
The Court also discusses the Warsaw Convention and its history, including the development of waivers and successive liability arrangements [11]-[25]. It treats that history as background relevant to interpreting the Montreal Convention, not as a substitute for the words of the Convention and tariff. The holding on r 105(C)(1)(a) is the High Court's own construction of that tariff in the circumstances described.
The appeal resolved the legal construction of the disputed tariff clause, not the underlying injury claims. The judgment does not establish whether the alleged turbulence caused the passengers' spinal or psychological injuries, whether the circumstances met the requirements of Art 17, or whether Air Canada can prove either limb of Art 21(2) [2], [26], [29].
It also does not decide how a differently worded tariff would be construed. A tariff that expressly states that the carrier waives the Art 21(2) defence, or that the threshold is raised to a specified amount or removed, would present a different construction question. Evans establishes that Art 25 permits such a stipulation in principle, but its effect would depend on the wording and surrounding terms [38]-[39], [49].
The relationship between a contractual waiver under Art 25 and the separate reference in Art 27 to waiving Convention defences was not necessary to resolve. The Court of Appeal had not decided whether any waiver would operate under Art 25, Art 27, or both, and the High Court's conclusion that the tariff contained no waiver meant it did not need to determine that further question [4]. The High Court did, however, hold that Art 25 itself empowered a carrier to raise the Art 21(2) threshold [38]-[39].
Finally, the applicable SDR threshold can change over time. The judgment records that the threshold applying to the July 2019 events was 113,100 SDR, and that the amount later increased to 128,821 SDR from 28 December 2019 [2] n 4, [31]. Which threshold applies in another dispute may therefore depend on the relevant date and the applicable legal instrument.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GAGELER CJ,
EDELMAN, STEWARD, GLEESON AND BEECH‑JONES JJ
RENAE EVANS & ANOR APPELLANTS
AND
AIR CANADA RESPONDENT
Evans v Air Canada
[2025] HCA 22
Date of Hearing: 12 March 2025
Date of Judgment: 14 May 2025
S138/2024
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation
B W Walker SC with M Tanevski for the appellants (instructed by Shine Lawyers)
J T Gleeson SC with G O J O’Mahoney and L G Moretti for the respondent (instructed by Norton White)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Evans v Air Canada
Aviation – Carriage of passengers by air – Contract of carriage – Where Air Canada's International Passenger Rules and Fares Tariff ("Air Canada Tariff") formed part of contract of carriage with passengers – Where defences to liability recognised by Convention for the Unification of Certain Rules for International Carriage by Air (1999) ("Montreal Convention") – Where treaty provisions given effect in domestic law – Where liability rules of Montreal Convention expressly incorporated into Air Canada Tariff – Where partial defence in Art 21(2) of Montreal Convention raised – Whether open to Air Canada to waive partial defence limiting extent of passengers' recovery of damages for bodily injury allegedly caused by turbulence experienced on flight – Whether any waiver of partial defence in Air Canada Tariff.
Words and phrases – "aviation", "bodily injury", "context", "contract of carriage", "damages", "defence", "financial limit", "liability cap", "liability rules", "partial defence", "purpose", "tiers of liability", "travaux préparatoires", "treaty", "treaty interpretation", "unlimited liability", "waiver".
Civil Aviation (Carriers' Liability) Act 1959 (Cth), ss 9B, 11.
Convention for the Unification of Certain Rules for International Carriage by Air (1999), Arts 17, 21, 25.
Vienna Convention on the Law of Treaties (1969), Arts 31, 32.
GAGELER CJ, EDELMAN, STEWARD, GLEESON AND BEECH-JONES JJ.
This appeal concerns the meaning of Arts 17, 21 and 25 of the Convention for the Unification of Certain Rules for International Carriage by Air (1999)1 ("the Montreal Convention") and the application of those provisions in Air Canada's International Passenger Rules and Fares Tariff ("the Air Canada Tariff"), which formed part of its contract of carriage with passengers.
The issue in this Court arises from a claim, made by two passengers who travelled on an Air Canada flight from Vancouver to Sydney in July 2019, for damages arising from spinal and psychological injury allegedly caused by turbulence experienced on the flight. In the Supreme Court of New South Wales, the passengers sought damages from Air Canada for these bodily injuries under Art 17 of the Montreal Convention, as incorporated into Australian law.2 Air Canada relied upon a partial defence in Art 21(2) of the Montreal Convention, available where the damage was not due to negligence or any other wrongful act or omission by Air Canada or its servants or agents. Under that partial defence, damages would be subject to a cap that limited the extent of the passengers' recovery to 113,1003 Special Drawing Rights (an international reserve asset created by the International Monetary Fund4) which is approximately $240,000 at present exchange rates. The appellant passengers replied that, under Art 25, Air Canada had waived the partial defence in Art 21(2) because the Air Canada Tariff provided in r 105(C)(1)(a) that "[t]here are no financial limits in respect of death or bodily injury".
In the Supreme Court of New South Wales, two questions were reserved for the consideration of the Court. One of the questions concerned the applicability to the quantum of the appellant passengers' claim for damages of Pt 2 of the Civil Liability Act 2002 (NSW). That question was answered by the primary judge (Rothman J) in favour of Air Canada. No appeal was brought from that answer. The other question was as follows:
"Does Rule 105(C) [of the Air Canada Tariff] provide and have the effect that if this Court assesses each plaintiff's compensatory damages in Australian dollars in an amount in excess of [113,100] Special Drawing Rights (SDR), each is entitled to recover that sum from the defendant even if the defendant can prove that the damages were not due to the negligence or other wrongful act or omission of the carrier or its servants or agents or such damage was solely due to the negligence or other wrongful act or omission of a third party?"
The primary judge held that Art 25 of the Montreal Convention allowed a carrier to remove entirely the partial defence to liability provided by Art 21(2)5 and that the clear and unambiguous language of r 105(C)(1)(a) had done so.6 The Court of Appeal (Leeming JA, with whom Payne JA and Griffiths A-JA agreed) granted leave and allowed the appeal.7 The Court of Appeal held that it was open to Air Canada to waive the partial defence in Art 21(2), although the Court of Appeal did not decide whether such a waiver would occur under Art 25 or Art 27, or both, because the Court held that Air Canada had not waived the partial defence under r 105(C)(1)(a).8
For the reasons below, Art 25 empowered Air Canada to waive the partial defence in Art 21(2) but, as the Court of Appeal correctly concluded, Air Canada did not do so. When regard is had to the context of r 105(C)(1)(a) of the Air Canada Tariff, particularly the meaning of Arts 17 and 21 of the Montreal Convention, r 105(C)(1)(a) must be seen as no more than declaratory of the effect of Art 17, and therefore subject to the defences to liability recognised by the Montreal Convention.
The Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("the Civil Aviation Act") gives the Montreal Convention9 and (replacing earlier legislation10) the Convention for the Unification of Certain Rules Relating to International Carriage by Air (1929)11 ("the Warsaw Convention"),12 as amended,13 domestic legal effect in Australian law. However, although the appellant passengers' claim is brought under the Civil Aviation Act as a matter of domestic law, the treaty provisions that are given effect in domestic law have meaning in public international law which has not been altered by the Civil Aviation Act. As four members of this Court said in Povey v Qantas Airways Ltd,14 "international treaties should be interpreted uniformly by contracting states". And as this Court has reiterated,15 the text of an international treaty is to be interpretated in accordance with the interpretative rules of the Vienna Convention on the Law of Treaties (1969) ("the Vienna Convention"). Consideration of the historical context of a treaty, including related treaty instruments and the travaux préparatoires to the treaty, is an important aspect of that interpretative process.
Article 31(1) of the Vienna Convention requires that a treaty be "interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose". The definition of "context" in Art 31(2) is narrow, referring to (in addition to the general text of the treaty, including the preamble and any annexes) certain agreements and instruments related to the treaty. Nevertheless, consistently with ordinary conventions of language, the International Law Commission16 and the International Court of Justice17 have emphasised that treaty interpretation is a holistic exercise to ascertain meaning, without separation of "context" in Art 31(1) from the broad range of materials which can be considered as part of the "supplementary means" of interpretation in Art 32.
The system involving the rules governing liability for international air carriers and their application has been described as "an unusual hybrid of public international law and private transnational law";20 the rules are provided by international treaties but disputes are generally adjudicated by domestic courts. Although this appeal is most directly concerned with provisions of the Montreal Convention, the interpretation of the Montreal Convention requires an understanding of its history and development and particularly its relationship with the Warsaw Convention and the agreements that amended the Warsaw Convention or waived the benefits accruing to carriers under it.
The recitals to the Montreal Convention reveal the importance to the development and understanding of the Montreal Convention of the Warsaw Convention and related instruments ("the Warsaw system"). The recitals include recognition of the "significant contribution" of the Warsaw Convention and the "need to modernize and consolidate the Warsaw Convention and related instruments".21 It has therefore been consistently reiterated in case law, including by the Court of Appeal in this case,22 that an understanding of the Warsaw system, including authorities on similar or identical provisions,23 is necessary to appreciate the meaning of many provisions of the Montreal Convention.
The Warsaw Convention came into force in 1933.24 It had been the product of a decade of international discussion and negotiation, meticulously set out by Lord Reed in King v Bristow Helicopters Ltd.25 For 70 years the Warsaw Convention, as modified by various instruments, governed "virtually all international carriage of passengers, baggage and cargo throughout the world and, thanks to voluntary adoption by States, also much of their domestic carriage".26
The "main feature"27 of the Warsaw Convention was Arts 17 and 22(1) which, together with other provisions: (i) created an exclusive regime for damages for personal injury or death "if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking";28 (ii) provided a defence if the carrier proved that the carrier and its "agents [had] taken all necessary measures to avoid the damage or that it was impossible ... to take such measures";29 and (iii) provided, subject to the carrier and its agents' wilful misconduct30 and other infringements,31 a limit to the liability of the carrier of 125,000 French or "Poincaré" gold francs (subject to any contractual agreement between the carrier and passenger for a higher limit).32 In 1933, 125,000 Poincaré gold francs was a "modest" amount of approximately US$8,300.33
In addition to the "all necessary measures" defence, the "severe monetary limitations on the amount of the carrier's liability" came into effect in 1933 "in order to help the international civil aviation industry grow".34 But the combination of the abandonment of the gold standard (on which many currencies were formerly based), together with inflation and a rising cost of living after the Second World War, led to the 125,000 franc limit becoming "more and more unacceptable", particularly in the United States where claimants bore their own legal costs. Although the airlines, and most other governments, resisted any increase in the limit, the United States agitated for an increase.
In December 1994, the International Civil Aviation Organization ("ICAO") Council established the parameters for the ICAO Secretariat to carry out an "analysis of the limits of air carrier liability" as part of "a comprehensive effort to accelerate the modernization of the 'Warsaw System' of air carrier liability". That analysis showed widespread dissatisfaction with the limits of liability imposed by the Warsaw Convention.50
In 1995, the 31st session of the ICAO Assembly directed the ICAO Council to "continue its efforts to modernize the 'Warsaw System' as expeditiously as possible".51 In 1997, at the 30th session of the ICAO Legal Committee, "[a]ll attention was focused only on the [1995/6 IATA Agreements] that [were] embodied in the draft presented to the Committee".52
A draft of the Montreal Convention presented to the International Conference on Air Law convened by ICAO in Montreal in May 1999 ("the Diplomatic Conference") provided for liability for personal injury or death in the same circumstances as provided by Art 17 of the Warsaw Convention. That liability was effectively divided into two tiers for the purposes of a defence contained in draft Art 20. The first tier imposed liability upon the air carrier up to a monetary threshold (subject to an exemption from liability in draft Art 16(1) for "death or injury result[ing] from the state of health of the passenger", which was not included in the final text53). The second tier imposed unlimited liability upon the air carrier beyond the threshold but subject to the various defences available to the carrier under draft Art 20.54
During negotiations, the most vocal proponents of draft Art 20 pointed to its similarity to the pre‑existing IATA regime, and the need to modernise the Warsaw system without causing "a fragmentation of régimes [which] the Diplomatic Conference was trying to cure".55 Other states were more sceptical of the proposal, voicing concerns that a system of unlimited liability would raise insurance premiums and adversely impact state-owned carriers and the viability of civil aviation in developing countries.56 Alternative proposals for the text of draft Art 20 were put forward by India, 53 African states, the member states of the Arab Civil Aviation Commission, Vietnam, and Pakistan. None of these attained significant support from other states or groups of states in the Diplomatic Conference.
"Article 17. Death and Injury of Passengers—Damage to Baggage
1. The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking."
Articles 18 and 19 are concerned with liability for damage to cargo and liability for damage occasioned by delay respectively.
Article 20 provides for a defence of contributory negligence (or other wrongful act or omission of the claimant or person from whom the claimant derives their rights) adapted from Art 21 of the Warsaw Convention.
Article 21 provides as follows:
"Article 21. Compensation in Case of Death or Injury of Passengers
For damages arising under paragraph 1 of Article 17 not exceeding 100,000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability.
The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100,000 Special Drawing Rights if the carrier proves that:
(a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or
(b) such damage was solely due to the negligence or other wrongful act or omission of a third party."
The defence in Art 21(2), which operates only beyond the limit or threshold specified by reference to Special Drawing Rights, can be loosely described as a "no negligence" defence.
Article 22 imposes limits of liability for delay in the carriage of persons and, in the carriage of baggage and cargo, limits of liability in the case of destruction, loss, damage or delay. The limits of liability in respect of destruction, loss, damage or delay of baggage or cargo may be increased to a "declared sum", where the passenger or consignor has made a "special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires".68
Article 24, which has been described as an "escalator clause",69 addresses one of the concerns about the erosion of the limits of liability by inflation. In broad terms, Art 24 provides for inflation‑based increases to the "limits of liability" in Arts 21, 22 and 23, subject to disapproval by a majority of state parties, with the limits to be reviewed at least every five years. Subsequent to the events in July 2019 that allegedly caused the injuries of the appellant passengers, the limit of 113,100 Special Drawing Rights for Art 21 was increased under Art 24, with effect from 28 December 2019, to 128,821 Special Drawing Rights.70
Article 25 provides as follows:
"Article 25. Stipulation on Limits
A carrier may stipulate that the contract of carriage shall be subject to higher limits of liability than those provided for in this Convention or to no limits of liability whatsoever."
As the history above shows, it was widely understood that the effect of Art 22(1) of the Warsaw Convention upon the carrier's strict liability for personal injury or death under Art 17 was "a quid pro quo, whereby the airline's liability was limited in return for almost certain recovery for the [passenger], with the presumption of carrier's fault and reversed burden of proof".71 The Warsaw Convention thus adopted a regime of strict liability (subject to defences) for personal injury or death when the conditions of Art 17 were met, but with a monetary limit to that liability.72 The quantum of the limit of a carrier's strict liability for personal injury or death under Art 17 was provided in Art 22(1) as "the sum of 125,000 [Poincaré gold] francs". That limit became "doubtless the most controversial issue in the Warsaw system".73
By contrast, the success of the Montreal Convention lies in the fact that "[u]nlimited liability is the cornerstone principle of the Montreal Convention".74 As explained above, the travaux préparatoires to the Montreal Convention were replete with references to "unlimited liability" for death or personal injury that fell within the conditions of strict liability in Art 17. In this respect, the Montreal Convention was the natural successor to the scope of liability (subject to defences) provided by the 1995/6 IATA Agreements which, due to the lack of any monetary limit to the liability, had been described in the United States as "absolute liability".75
It might be said that Art 21 of the Montreal Convention, like Arts 22 and 24 of the Warsaw Convention which it adapted and developed, is "not a model of the clear drafter's art".76 But once the "cap" or "threshold" in Art 21(2) is understood only as a limit to the first of two tiers of liability for the purposes of a defence, it follows that the repeated references to "unlimited liability" in the travaux préparatoires to the Montreal Convention are an accurate description of the strict liability (subject to defences) that arises when the conditions of Art 17 are met.
The repeated description of Art 21 in the travaux préparatoires to the Montreal Convention as creating "a two-tier system" of liability does not deny the unlimited nature of the Art 17 liability overall. Instead, Arts 17 and 21 create a continuous regime of unlimited liability with a limit or threshold only for the purposes of separating such liability into two tiers for the application of the "no negligence" defence in Art 21(2). In other words, first-tier liability under Art 17 operates up to the financial limit or threshold in Art 21(1), with the only defence being the claimant's or other relevant person's contributory negligence or wrongdoing (Art 20), and second-tier liability under Art 17 operates beyond that limit or threshold but has the additional partial "no negligence" defence in Art 21(2).
The Air Transportation Regulations 1987 (Canada), by s 110(1), generally require a carrier to file a tariff with the Canadian Transportation Agency before commencing the operation of an international service. That tariff is required to contain, by s 122(a), "the terms and conditions governing the tariff generally, stated in such a way that it is clear as to how the terms and conditions apply to the tolls named in the tariff" and, by s 122(c), "the terms and conditions of carriage, clearly stating the air carrier's policy in respect of at least the following matters, namely, (i) the carriage of persons with disabilities ... (xviii) limits of liability respecting passengers and goods, [and] (xix) exclusions from liability respecting passengers and goods".
Rule 105 of the Air Canada Tariff, entitled "Liability of Carriers", implements these requirements of the Canadian Air Transportation Regulations by describing the regime of liability for Air Canada, including the limits of that liability. The provisions of the rule relevant to this appeal are rr 105(B) and 105(C). Rule 105(B), entitled "Laws and Provisions Applicable", describes the general application of the Warsaw system and the Montreal Convention as well as other applicable laws and regulations. Rule 105(C), entitled "Limitation of Liability", then describes particular prescribed limits to Air Canada's liability under the Warsaw system and the Montreal Convention.
Rule 105(B)(1) describes Air Canada's liability under the Warsaw system as modified by the terms of the 1995/6 IATA Agreements. Rule 105(B)(1)(a) provides that Air Canada "shall not invoke the limitation of liability" in Art 22(1) of the Warsaw Convention. Rule 105(B)(1)(b) provides that Air Canada "shall not avail itself of any defense under Article 20(1) of the [Warsaw] Convention with respect to that portion of such claim which does not exceed 113,100 Special Drawing Rights". Rule 105(B)(1)(c) provides that "[e]xcept as otherwise provided herein" Air Canada "reserves all defenses available" under the Warsaw Convention. These waivers, and the reservation of all other defences, effectively implement the terms of the 1995/6 IATA Agreements.
Rule 105(B)(2) describes details of presentation including the carrier's name and address in the ticket where the Warsaw system applies, and specifies the "agreed stopping places" for the purposes of the Warsaw Convention. Rule 105(B)(3) describes how carriage is subject to: (i) applicable laws, government regulations, orders, and requirements; (ii) provisions in the passenger's ticket; and (iii) the tariff, general conditions of carriage, and applicable fare rules.
Rule 105(B)(4) provides that the "[n]ormal carrier limit of liability will be waived for substantiated claims involving loss[,] damage or delay in delivery to mobility aids ... [w]hen such items have been accepted into the care of the carrier as checked baggage or otherwise." But the liability of the carrier is nevertheless limited to the cost of repair or the replacement value of the mobility aid. This rule describes the effect of s 155 of the Canadian .
"105 Liability of Carriers ...
(C) Limitation of Liability
(1) Where the Montreal Convention applies, the limits of liability are as follows:
(a) There are no financial limits in respect of death or bodily injury.
(b) In respect of destruction, loss of, or damage or delay to baggage, 1,131 Special Drawing Rights (approximately EUR 1,357; US $1,663) per passenger in most cases.
(c) For damage occasioned by delay to your journey, 4,694 Special Drawing Rights (approximately EUR 5,655; US $6,786) per passenger in most cases.
(2) Where the Warsaw Convention system applies, the following limits of liability may apply:
(a) 16,600 Special Drawing Rights (approximately EUR 20,000; US $20,000) in respect of death or bodily injury if the Hague Protocol to the Convention applies, or 8,300 Special Drawing Rights (approximately EUR 10,000; US $10,000) if only the Warsaw Convention applies[.] US regulations require that, for journeys to, from or with an agreed stopping place in the US, the limit may not be less than US $75,000.
(b) 17 Special Drawing Rights (approximately EUR 20; US $20) per kg for loss of or damage or delay to checked baggage and 332 Special Drawing Rights (approximately EUR 400; US $400) for unchecked baggage.
(c) The carrier may also be liable for damage occasioned by delay.
(3) Where neither the Montreal Convention nor the Warsaw Convention system applies the liability limit for loss or delay of, or damage to baggage is $1,500 CAD per passenger.
(4) Except as provided herein, or in other applicable law:
(a) Carrier is not liable for any death, injury, delay, loss, or other damage of whatsoever nature (hereinafter in this tariff collectively referred to as 'damage') to passengers or unchecked baggage arising out of or in connection with carriage or other services performed by carrier incidental thereto, unless such damage is caused by the negligence of carrier.
(b) Carrier is not liable for any damage directly and solely arising out of its compliance with any laws, government regulations, orders, or requirements or from failure of passenger to comply with same.
(5) The aforementioned limits of liability apply unless a higher value is declared in advance and additional charges are paid as set out below. In that event the liability of the carrier shall be limited to such higher declared value. In no case shall the carrier's liability exceed the actual loss suffered by the passenger."
"in serious death and injury cases, major airlines tend increasingly to ignore the limits, and to pay full awardable damages. In fact, in view of the enormous cost of modern aircraft and of operating international air services, not to mention air travel claiming to be the safest means of transport, the difference in cost between insuring passenger liability for SDR100,000 a head or even for what could be compensation in full becomes negligible".
There is also no room in this context for the application of any expectation or "presumption", as relied upon by Air Canada, to the effect that "for a party to be held to have abandoned or contracted out of valuable rights arising by operation of law, the provision relied upon must make it clear that that is what was intended. ... 'The more valuable the right, the clearer the language will need to be.'"82 Any such principle could have no application where the "right" in question is the application of a regime that (in Art 21) establishes the limit or threshold for tiers of liability for the application of a defence but also contemplates (in Art 25) that that limit or threshold can be raised or abolished by the stipulation of a carrier.
Although the meaning of r 105(C)(1)(a) is not to be determined by such a priori assumptions, the provision must nevertheless be interpreted having regard to its context and purpose. That context and purpose make clear that r 105(C)(1)(a) only describes the effect of Arts 17 and 21 of the Montreal Convention, rather than stipulating a higher limit of liability for the purposes of Art 25 of the Montreal Convention. This interpretation of r 105(C)(1)(a) is supported by five matters of context and purpose.
First, r 105(C)(1)(a) is, in its terms, an accurate statement of the meaning of Art 17 of the Montreal Convention. As already explained, the travaux préparatoires to the Montreal Convention are replete with references to liability for personal injury or death within the terms of Art 17 being "unlimited". Indeed, the limit to the equivalent liability for personal injury or death in the Warsaw Convention was the reason that that Convention had been so controversial. The effect of Arts 17 and 21 of the Montreal Convention is to establish two tiers of liability so that the "no negligence" defence in Art 21(2) will only apply in the second tier; neither Art 17 nor Art 21 imposes any financial limits in respect of the overall Art 17 liability of carriers for death or bodily injury. The limit or threshold is only for the application of the defence in Art 21(2). Rule 105(C)(1)(a) therefore correctly declares that "[t]here are no financial limits in respect of death or bodily injury". The concern of r 105(C)(1)(a) is the subject matter of ("in respect of") death or bodily injury. It is not concerned with the limit or threshold for the application of the defence in Art 21(2) of the Montreal Convention.
Secondly, r 105(C)(1), like the other provisions of r 105(B) and (C), gives effect to the Canadian Air Transportation Regulations, including the requirement to state the limits of and exclusions from liability respecting passengers and goods. Those Regulations required the Air Canada Tariff to describe the legal effect of multiple instruments since, as Leeming JA observed in the Court of Appeal, passengers on an Air Canada flight could be subject to different legal regimes depending upon the points of connection of the flight. The relevant regimes to which the relevant parts of the Air Canada Tariff are directed include the Warsaw Convention, the 1995/6 IATA Agreements, the Canadian , and the Montreal Convention.
2242 UNTS 309. ↩
Civil Aviation (Carriers' Liability) Act 1959 (Cth), s 9B. ↩
Although expressed as 128,821 Special Drawing Rights in a separate question referred to the primary judge, there was no dispute in the Court of Appeal or in this Court, following the observations of the primary judge, that the correct cap at the relevant time was 113,100 Special Drawing Rights. ↩
See Montreal Convention, Art 23(1). ↩
Evans v Air Canada [2023] NSWSC 1535 at [51]. ↩
Evans v Air Canada [2023] NSWSC 1535 at [61]. ↩
Air Canada v Evans (2024) 114 NSWLR 433. ↩
Air Canada v Evans (2024) 114 NSWLR 433 at 457 [88]-[90], 458 [94], [95]. ↩
Civil Aviation (Carriers' Liability) Act, s 9B. ↩
See Carriage by Air Act 1935 (Cth); Civil Aviation (Carriers' Liability) Act 1959 (Cth), s 4(1) (as made). ↩
137 LNTS 11. ↩
Civil Aviation (Carriers' Liability) Act, s 11.
Evans
Air Canada [2025] HCA 22
(2024) 114 NSWLR 433
(2005) 223 CLR 189
(2023) 275 CLR 292
(2024) 98 ALJR 445
(2012) 289 ALR 682
(2008) 251 ALR 183
Appeal dismissed with costs.
Article 32 permits resort to "supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion", to confirm the meaning of the provision arising from the application of Art 31, or to determine the meaning of the provision if that meaning is ambiguous (including latent ambiguity) or obscure or "[l]eads to a result which is manifestly absurd or unreasonable". The distinction in Art 32 between confirming a meaning and determining a meaning was not intended to be, and has not been, applied rigidly or independently of the considerations of context, object, and purpose in Art 31.18 The intention was one of "frequent and quite normal recourse to travaux préparatoires without any too nice regard for the question whether the text itself is clear".19
The Hague Protocol of 1955 ("the Hague Protocol"), operative from 1963,36 amended the Warsaw Convention to, among other things, increase the liability limit from 125,000 francs to 250,000 francs.37 Nevertheless, the United States remained dissatisfied, to the point of giving notice of its intention to denounce the Warsaw Convention. Ultimately, the United States did not do so because a private accord, the 1966 Montreal Intercarrier Agreement ("the 1966 IATA Agreement"), was reached between the International Air Transport Association ("IATA") and the United States. Under the 1966 IATA Agreement, members of IATA operating international flights with any connecting points in the United States effectively accepted strict liability up to a higher limit, subject only to the defence of contributory negligence, and without the "all necessary measures" defence.38
The following years saw attempts to address the non‑uniform international system that resulted from the operation of the 1966 IATA Agreement only in relation to international flights with connecting points in the United States. In 1971, a protocol was agreed at Guatemala City but never came into force.39 In 1975, four protocols were agreed in Montreal, with significant changes including the replacement of a gold standard with Special Drawing Rights and a new liability cap of 100,000 Special Drawing Rights.40 But the United States remained dissatisfied with what it saw as the "unconscionably low"41 liability cap of the Warsaw system.42 The Warsaw system was also "plagued by inconsistent and uneven ratifications of its various instruments".43 The inconsistencies were exacerbated by a group of countries who developed a consensus, described as the "Malta Agreement", from 1974 onwards to increase the limit of liability from the limit in Art 22(1) of the Warsaw Convention (as amended). The inconsistencies were further exacerbated by the decision of Japanese international airlines to accept, in respect of passenger injury or death, liability for claims up to 100,000 Special Drawing Rights (subject to a defence of contributory negligence) and, beyond that, unlimited liability subject to defences of lack of fault and contributory negligence.44
In 1995 and 1996, following negotiations conducted with the benefit of a grant of anti-trust immunity, IATA member airlines and others entered into agreements ("the 1995/6 IATA Agreements") based on the recognition that the Warsaw Convention's "limits of liability ... are now grossly inadequate in most countries and that international airlines have previously acted together to increase them to the benefit of passengers".45 Under the 1995/6 IATA Agreements, the airlines agreed to take measures including: (i) waiving the Warsaw Convention's limit of liability in Art 22(1) for personal injury or death arising from an Art 17 accident; and (ii) waiving the Art 20(1) "all necessary measures" defence for that part of any claim that is below 100,000 Special Drawing Rights.46 The European Union followed suit in 1997 with a regulation requiring waivers to similar effect.47
The 1995/6 IATA Agreements, like the 1966 IATA Agreement and the Malta Agreement,48 provided for this waiver of liability to take effect by "incorporating [the waivers] in [carriers'] conditions of carriage and tariffs". This was an application of the provision in Art 22(1) of the Warsaw Convention under which "by special contract, the carrier and the passenger may agree to a higher limit of liability".49
Faced with this lack of consensus, the Chairman of the Diplomatic Conference identified "a common thread running through the proposals made by the 53 African Contracting States, India and Vietnam ... namely, that they all subscribed to the principle of unlimited liability".58 This limited consensus was reiterated by the Chairman, in a "Friends of the Chairman" Group meeting convened in the second week of negotiations: "the overwhelming majority of Delegates had come around to accepting the principle of strict liability up to a certain threshold"59 and there was "common ground that there would be circumstances in which there would be unlimited liability".60
The Chairman presented a draft consensus package to the Friends of the Chairman Group with two alternative proposals for draft Art 20. Although one alternative involved two tiers and the other involved three tiers, each involved liability up to a monetary threshold and, after a particular threshold was met, unlimited liability subject to certain conditions.61 After the Delegate of the United States of America expressed strong dissatisfaction with both alternatives, the Chairman observed that the drafting "exercise had been one of 'blood sweat and tiers'".62
At a meeting of the Commission of the Whole, the Chairman presented an updated consensus package, which included what would become the final text of Art 21.63 The Chairman summarised the changes made since the first version of the draft article, noting that the Friends of the Chairman Group had opted to maintain a two-tier model so as to "ensure the continued predictability of recovery up to a threshold which would apply in the majority of cases" and had concluded that for cases of "unlimited liability arising under [what became Art 21(2)], the burden of proof should be on the air carrier".64
Following the entry into force of the Montreal Convention on 4 November 2003,65 there began "[a] new era in the law of international carriage by air".66 A central feature of that new era was the Arts 17 and 21 scope of liability for death or personal injury which the President of the Diplomatic Conference described at the conclusion of the negotiations as "establishing a two-tier system: a system of strict liability up to 100,000 SDRs; a principle of unlimited liability thereafter, but with the burden of proof on the carrier".67
As to Art 25, the terms of that Article contemplate that a carrier can stipulate in its contract or tariff with passengers that the threshold in Art 21 be raised, including to the point of effectively excluding the "no negligence" defence altogether. Contrary to the submissions of Air Canada, the Art 21(2) threshold is one of the "limits of liability" referred to in Art 25. Indeed, the review in Art 24 applies to "the limits of liability prescribed in Articles 21, 22 and 23". There is nothing in the travaux préparatoires to suggest that Art 25 was not intended to apply to the limit or threshold in Art 21. Unlike Art 21, Art 25 was not the subject of extensive negotiation, and the draft text of Art 25 was adopted without amendment or comment.77
Moreover, Art 25 of the Montreal Convention has been described as having its "roots" in the exception in Art 22(1) of the Warsaw Convention, which permitted the carrier to depart from the limit of liability by agreeing to a higher limit of liability "by special contract".78 As explained above, Art 22(1) was the basis in the 1995/6 IATA Agreements for the airlines' waiver of the 125,000 Poincaré gold franc limit in the Warsaw Convention. The limit, as increased by the 1995/6 IATA Agreements, then became the threshold in Art 21(2) of the Montreal Convention.79 Therefore, whether or not the freedom to contract provision in Art 27 of the Montreal Convention extended (as Air Canada submitted it does) to permit an increase in the limit or threshold in Art 21(2), the appellant passengers were correct that a power to agree to such an increase fell within Art 25.
Rule 105(B)(5) provides for the "liability rules" of the Montreal Convention to be "fully incorporated herein" and for those liability rules to "supersede and prevail over any provisions of this tariff which may be inconsistent with those rules".
Rule 105(C) deals with death or bodily injury to passengers, as well as issues concerning delay, baggage and property, in paras (1) to (11), and various general matters in paras (12) to (15). The immediate context of r 105(C)(1)(a) concerning death or bodily injury is paras (1) to (5), which are as follows:
Thirdly, consistently with the purpose of fulfilling the requirements of the Canadian Air Transportation Regulations, each of the preceding and succeeding provisions to r 105(C)(1)(a) does little more than declare the effect of the provisions of the Warsaw Convention, the 1995/6 IATA Agreements, the Canadian Air Transportation Regulations, and the Montreal Convention. For instance, as Leeming JA observed in the Court of Appeal, reference to "in most cases" in r 105(C)(1)(b) and (c) is "the language of a provision which is intended concisely to notify passengers of the limits to which their contract of carriage by air is subject".84 The reference to "in most cases" reflects the possibility of exceptional circumstances such as a "special declaration" under Art 22(2) in cases where, for example, a passenger has extremely valuable baggage and is prepared to pay more for a higher limit of liability. So too, r 105C(1)(a) declares the effect of Art 17 of the Montreal Convention.
Fourthly, the provision that immediately precedes r 105(C)(1)(a) (namely r 105(B)(5)) is concerned to ensure that the liability rules of the Montreal Convention are "fully incorporated" in the Air Canada Tariff, even to the extent of providing that those rules prevail over any inconsistent provisions of the Air Canada Tariff. Of course, there would be no inconsistency that would arise by Air Canada exercising the power recognised in Art 25 for Air Canada to raise or waive the limit or the threshold applicable to the Art 21(2) defence, or by exercising the power in Art 27 to waive any defence. But, unlike r 105(B)(1), which, in accordance with the terms of the 1995/6 IATA Agreements, waives defences under the Warsaw Convention, r 105(C)(1)(a) does not use the language of waiver. Nor does it use the language of raising or abolishing the limit for the application of the defence in Art 21(2).
Fifthly, the appellant passengers' interpretation of r 105(C)(1)(a) is in tension with Air Canada's provision in r 105(C)(4) (subject to provision otherwise in the Air Canada Tariff or in applicable laws) that it has a defence to liability for death or injury that is not caused by its negligence. Of course, r 105(C)(4) must be read as subject to the limit or threshold for the application of the "no negligence" defence in Art 21(2). But r 105(C)(4) confirms that Air Canada did not intend to waive that defence.
See Protocol to amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on 12 October 1929 (1955) 478 UNTS 371. ↩
(2005) 223 CLR 189 at 202 [25]; see also at 211 [60]. ↩
Most recently in Kingdom of Spain v Infrastructure Services Luxembourg Sàrl (2023) 275 CLR 292 at 316 [38]-[39]; Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG (2024) 98 ALJR 445 at 452 [30]; 417 ALR 173 at 181. ↩
International Law Commission, Report of the International Law Commission on the work of its seventieth session (30 April–1 June and 2 July–10 August 2018), UN Doc A.CN.4/SER.A/2018/Add.1 (Part 2), in [2018] Yearbook of the International Law Commission, vol 2, 1 at 26 [52], Draft Conclusion 2.5. ↩
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment [2007] ICJ Rep 43 at 109-110 [160]; Maritime Delimitation in the Indian Ocean (Somalia v Kenya), Preliminary Objections, Judgment [2017] ICJ Rep 3 at 29 [64]; Arbitral Award of 3 October 1899 (Guyana v Venezuela), Preliminary Objection, Judgment [2023] ICJ Rep 262 at 287 [88]. ↩
Gardiner, Treaty Interpretation, 2nd ed (2015) at 348-349. See also JTI Polska sp z oo v Jakubowski [2024] AC 621 at 633-634 [32]. ↩
Waldock, Special Rapporteur, Sixth Report on the Law of Treaties, UN Doc A/CN.4/186 and Add 1-7, in [1966] Yearbook of the International Law Commission, vol 2, 51 at 99 [20], quoted in Gardiner, Treaty Interpretation, 2nd ed (2015) at 347. ↩
Havel and Sanchez, The Principles and Practice of International Aviation Law (2014) at 251. ↩
Montreal Convention, Preamble. ↩
Air Canada v Evans (2024) 114 NSWLR 433 at 445 [34]. ↩
See Cohen v American Airlines Inc (2021) 13 F 4th 240 at 244-245; Dempsey and Milde, International Air Carrier Liability: The Montreal Convention of 1999 (2005) at 42-43. ↩
See Warsaw Convention (1929) 137 LNTS 11 at 13. ↩
2001 SC 54 at 103-104 [6]-[8]. ↩
Cheng, "A New Era in the Law of International Carriage by Air: From Warsaw (1929) to Montreal (1999)" (2004) 53 International and Comparative Law Quarterly 833 at 833. ↩
See Oliveto, "Revisiting the Liability System of the Montreal Convention of 1999" (2022) 21 Issues in Aviation Law and Policy 177 at 180, citing Tompkins, Liability Rules Applicable to International Air Transportation as Developed by the Courts in the United States: From Warsaw 1929 to Montreal 1999 (2010) at 34. ↩
Warsaw Convention, Arts 17, 24. See Sidhu v British Airways Plc [1997] AC 430 at 447; El Al Israel Airlines Ltd v Tsui Yuan Tseng (1999) 525 US 155 at 176; United Airlines Inc v Sercel Australia Pty Ltd (2012) 289 ALR 682 at 704-705 [96]-[98]. ↩
Warsaw Convention, Art 20(1). ↩
Warsaw Convention, Art 25. ↩
Warsaw Convention, Arts 3(2), 4(4), 9. ↩
Warsaw Convention, Art 22(1), (4). ↩
Cheng, "A New Era in the Law of International Carriage by Air: From Warsaw (1929) to Montreal (1999)" (2004) 53 International and Comparative Law Quarterly 833 at 835; Havel and Sanchez, The Principles and Practice of International Aviation Law (2014) at 261. ↩
Batra, "Modernization of the Warsaw System—Montreal 1999" (2000) 65 Journal of Air Law and Commerce 429 at 429. See also Dempsey and Milde, International Air Carrier Liability: The Montreal Convention of 1999 (2005) at 50-52; Havel and Sanchez, The Principles and Practice of International Aviation Law (2014) at 258-259. ↩
Cheng, "A New Era in the Law of International Carriage by Air: From Warsaw (1929) to Montreal (1999)" (2004) 53 International and Comparative Law Quarterly 833 at 835; Dempsey and Milde, International Air Carrier Liability: The Montreal Convention of 1999 (2005) at 26-27. ↩
See Hague Protocol (1955) 478 UNTS 371 at 373. ↩
See Hague Protocol (1955), Art XI. ↩
See Cheng, "A New Era in the Law of International Carriage by Air: From Warsaw (1929) to Montreal (1999)" (2004) 53 International and Comparative Law Quarterly 833 at 836; Havel and Sanchez, The Principles and Practice of International Aviation Law (2014) at 269-270. ↩
Havel and Sanchez, The Principles and Practice of International Aviation Law (2014) at 266; Tompkins, Liability Rules Applicable to International Air Transportation as Developed by the Courts in the United States: From Warsaw 1929 to Montreal 1999 (2010) at 353. ↩
Havel and Sanchez, The Principles and Practice of International Aviation Law (2014) at 267. ↩
Dunn v Trans World Airlines Inc (1979) 589 F 2d 408 at 411. ↩
Havel and Sanchez, The Principles and Practice of International Aviation Law (2014) at 268. See also Cheng, "A New Era in the Law of International Carriage by Air: From Warsaw (1929) to Montreal (1999)" (2004) 53 International and Comparative Law Quarterly 833 at 838. ↩
Havel and Sanchez, The Principles and Practice of International Aviation Law (2014) at 268. ↩
Cheng, "A New Era in the Law of International Carriage by Air: From Warsaw (1929) to Montreal (1999)" (2004) 53 International and Comparative Law Quarterly 833 at 840-842; Dempsey and Milde, International Air Carrier Liability: The Montreal Convention of 1999 (2005) at 31-32. ↩
Tompkins, Liability Rules Applicable to International Air Transportation as Developed by the Courts in the United States: From Warsaw 1929 to Montreal 1999 (2010) at 358. ↩
Havel and Sanchez, The Principles and Practice of International Aviation Law (2014) at 270-271; Tompkins, Liability Rules Applicable to International Air Transportation as Developed by the Courts in the United States: From Warsaw 1929 to Montreal 1999 (2010) at 358 [1], 360 [I(1)-(2)]. ↩
Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents [1997] OJ L 285/1, Art 3. ↩
See Cheng, "Air Carriers' Liability for Passenger Injury or Death: The Japanese Initiative and Response to the Recent EC Consultation Paper" (1993) 18 Air and Space Law 109 at 117. ↩
See Shawcross and Beaumont, Air Law (2013), vol 1, div 7 at 123 [183.2]. ↩
International Civil Aviation Organization, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air) Montreal, 10-28 May 1999 (1999), vol 2 at 165-180. ↩
International Civil Aviation Organization, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air) Montreal, 10-28 May 1999 (1999), vol 1 at 1. ↩
Dempsey and Milde, International Air Carrier Liability: The Montreal Convention of 1999 (2005) at 39. ↩
Compare Montreal Convention, Art 17(1). ↩
International Civil Aviation Organization, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air) Montreal, 10-28 May 1999 (1999), vol 2 at 11-28. ↩
International Civil Aviation Organization, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air) Montreal, 10-28 May 1999 (1999), vol 1 at 91-92 [7]-[9], 93 [15], 123 [64]. ↩
See, eg, International Civil Aviation Organization, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air) Montreal, 10-28 May 1999 (1999), vol 1 at 85 [26], 87 [35], 88-89 [41]-[42]. ↩
International Civil Aviation Organization, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air) Montreal, 10-28 May 1999 (1999), vol 1 at 85 [25], 86 [30], 87 [33], [35], 96 [24]. See also at 94 [18]. ↩
International Civil Aviation Organization, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air) Montreal, 10-28 May 1999 (1999), vol 1 at 94 [19]. ↩
International Civil Aviation Organization, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air) Montreal, 10-28 May 1999 (1999), vol 1 at 130 [5] (emphasis added). ↩
International Civil Aviation Organization, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air) Montreal, 10-28 May 1999 (1999), vol 1 at 129 [5]. ↩
International Civil Aviation Organization, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air) Montreal, 10-28 May 1999 (1999), vol 2 at 492. ↩
International Civil Aviation Organization, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air) Montreal, 10-28 May 1999 (1999), vol 1 at 177 [10]. ↩
International Civil Aviation Organization, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air) Montreal, 10-28 May 1999 (1999), vol 1 at 199 [1]; International Civil Aviation Organization, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air) Montreal, 10-28 May 1999 (1999), vol 2 at 500. ↩
International Civil Aviation Organization, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air) Montreal, 10-28 May 1999 (1999), vol 1 at 202 [10]. ↩
See Montreal Convention (1999) 2242 UNTS 309 at 309. ↩
Cheng, "A New Era in the Law of International Carriage by Air: From Warsaw (1929) to Montreal (1999)" (2004) 53 International and Comparative Law Quarterly 833 at 833. ↩
International Civil Aviation Organization, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air) Montreal, 10-28 May 1999 (1999), vol 1 at 246. ↩
Montreal Convention, Art 22(2), (3). ↩
Dempsey and Milde, International Air Carrier Liability: The Montreal Convention of 1999 (2005) at 201; Havel and Sanchez, The Principles and Practice of International Aviation Law (2014) at 297. ↩
See International Civil Aviation Organization, "Revision of limits of liability under the Montreal Convention of 1999—Notification of effective date of revised limits", ICAO Letter LE 3/38.1-19/70, 11 October 2019, given effect in Australia by the gazetted Notice Pursuant to Civil Aviation (Carriers' Liability) Act 1959 (Cth) (6 December 2019). ↩
Dempsey and Milde, International Air Carrier Liability: The Montreal Convention of 1999 (2005) at 52. ↩
See also Trans World Airlines Inc v Franklin Mint Corp (1984) 466 US 243 at 256. ↩
Cheng, "An Integrated System of Absolute, Unlimited and Secured Liability for Passenger Injury or Death in International Carriage by Air", in Cheng (ed), Studies in International Air Law: Selected Works of Bin Cheng (2018) 687 at 702. ↩
Havel and Sanchez, The Principles and Practice of International Aviation Law (2014) at 283. ↩
Williams v Fidelity & Casualty Co of New York (1977) 442 F Supp 455 at 456. ↩
See El Al Israel Airlines Ltd v Tsui Yuan Tseng (1999) 525 US 155 at 168. ↩
International Civil Aviation Organization, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air) Montreal, 10-28 May 1999 (1999), vol 1 at 101 [23]. ↩
Dempsey and Milde, International Air Carrier Liability: The Montreal Convention of 1999 (2005) at 201. ↩
Tompkins, Liability Rules Applicable to International Air Transportation as Developed by the Courts in the United States: From Warsaw 1929 to Montreal 1999 (2010) at 360 [I(2)]. ↩
Air Canada v Evans (2024) 114 NSWLR 433 at 457 [86]. ↩
Cheng, "A New Era in the Law of International Carriage by Air: From Warsaw (1929) to Montreal (1999)" (2004) 53 International and Comparative Law Quarterly 833 at 840. ↩
Bahamas Oil Refining Company International Ltd v Owners of the Cape Bari Tankschiffahrts GmbH & Co KG (The "Cape Bari") [2016] 2 Lloyd's Rep 469 at 476 [31], [33], quoting Stocznia Gdynia SA v Gearbulk Holdings Ltd [2010] QB 27 at 39 [23]. ↩
Air Canada v Evans (2024) 114 NSWLR 433 at 449-451 [58]-[63]. See also Gulf Air Co GSC v Fattouh (2008) 251 ALR 183 at 191 [28]; United Airlines Inc v Sercel Australia Pty Ltd (2012) 289 ALR 682 at 685-686 [14(a)-(b)]. ↩
Air Canada v Evans (2024) 114 NSWLR 433 at 454 [75]. ↩